New law's message for Oregon drivers: Put devices down!

Distracted driving has been on the rise for years, fueled by a constant increase in the capabilities and sophistication of consumer cellphones. First texting, then email, then social media and streaming music have created more and more ways to tempt drivers to take their eyes off the road.

"It's amazing how many people are paying attention to these devices," says LOPD Sgt. Clayton Simon. Officers on the road often observe drivers moving erratically, he says, and "you think maybe they're drunk, and then you pull up next to them and see, 'Oh, they're on their phone.'"

Any amount of phone use behind the wheel is dangerous, which is why Oregon is about to implement a strict new "hands-free" law that expands and clarifies the state's current prohibition. The new law takes effect Oct 1, and for Simon and others in the state's law enforcement departments, the change is a welcome one.

Officers have had difficulty enforcing the current law, which only prohibits the hand-held use of "communication devices" and could technically exclude standalone media players, GPS units or even tablets that lack cellular network connectivity — even though those devices have the potential to be equally distracting.

That distinction came to light in the 2015 state Supreme Court case Oregon v. Rabanales-Ramos, in which the defendant successfully argued that just because an officer saw the illumination from a device screen in their lap, it did not prove that they had used a "communications device" while driving.

"(The court ruling) narrowly defined using a phone as two-way talking or texting," Simon says. "But something like watching 'Game of Thrones' on your cellphone wouldn't have counted as a violation."

According to Simon, the ruling led to a precipitous decline in citations for cellphone use, because officers became less certain that they could prevail in court if a citation were contested. Drivers could still be cited for driving erratically, Simon says, but standalone citations for cellphone use became tougher to prove.

"In Lake Oswego alone, cellphone citations dropped 60 percent in the year after that decision," he says. "The sense I got from a lot of my officers was that it was frustrating. They could make traffic stops, but whether they could take enforcement action was another matter."

Now, that's about to change.

Simon was one of several officers from multiple Oregon jurisdictions who worked with legislators to help draft the new law and make sure it would allow police to fully enforce the rules against distracted driving. It passed during this year's legislative session and was signed by Gov. Kate Brown this summer.

"This new law addresses all of the technology available to us today," says LOPD Chief Don Johnson. "Although our devices make life easier, they also tempt drivers to lose focus on their primary mission: to drive safely."

The new law prohibits drivers from using electronic devices in any way that would prevent them from keeping their eyes on the road and both hands on the steering wheel. Phone calls are still allowed if drivers use hands-free accessories such as a Bluetooth headset, routing the call to the car's stereo system or speakerphone — but only if the phone isn't in the driver's hand.

"It's not a 'no cellphone law.' It's a 'hands-free' law," Simon says. "That means you can't, for example, turn on the speakerphone but then keep holding the phone in your hand — we run into that a lot."

The law uses the phrase "mobile electronic device" rather than "communications device" in order to account for the full array of modern devices and their uses, and it specifies that "driving" includes idling in a traffic jam or at a red light. A driver can only start using the phone if the vehicles has "stopped in a location where it can safely remain stationary," such as a parking space or pulled off to the side of the road.

There are a number of exceptions spelled out in the law, Simon adds, the biggest of which concerns the use of two-way radio units with handheld receivers. Those are still allowed for several groups of drivers, including emergency responders, school bus drivers, commercial drivers and truckers, utility workers, and search-and-rescue participants.

"We were able to go back, look at the draft law again and add exceptions," he says.

Some of those exceptions were obvious, but others came up during the months-long process of revising and refining the bill. The exception for search-and-rescue was added when the bill's writers got "quite a bit of pushback" from a group of ham radio hobbyists who often volunteer to help officials in search operations.

Another exception is for regular drivers in emergencies; if there's no one else in the car to make the call, drivers can still use their phones to call 911. The law also gives officers a certain amount of discretion in determining whether to cite a driver, Simon says, for situations where a driver may have momentarily touched their phone for the purpose of activating a hands-free function.

"If someone is really trying to do the right thing, we're going to look at that," he says.

A big part of the law is geared toward education, Simon says, which is why the law adds the option of a remedial education course for first-time offenders. The course is being developed by ODOT, and drivers who successfully complete it will be able to get their citation dismissed.

"Someone we cite could attend that," he says. "Especially for our younger drivers who grew up with cellphones, we want them to be aware of that."

But for people who receive multiple citations, the penalties have been stiffened. The first conviction is now a Class B violation with a $260 base fine, although the fine can be dismissed with class attendance. If the first offense contributes to a crash, it becomes a Class A violation with a $436 base fine, which is also the penalty for a second conviction if it occures within a 10-year period following the first conviction.

A third or subsequent conviction within 10 years will be a Class B Misdemeanor with a minimum $2,000 fine on top of any court fees.

The LOPD is planning a public awareness campaign leading up to Oct. 1 and continuing in subsequent weeks. The focus during those initial weeks will be on educating drivers who are pulled over, although Simon says the first few weeks shouldn't be thought of as a "grace period" because officers will still issue citations for significant violations.

"I would call it 'acclimation' as opposed to 'grace,'" he says. "We want to get out there and spread the word. We don't want it to be a surprise to anyone."

The law was somewhat controversial when it passed the Legislature, with some lawmakers expressing concern that it was overreaching and others wondering about other forms of distracted driving that the law doesn't cover, such as eating or putting on makeup.

Simon says those topics came up during discussions about the current law, but he and others were concerned that making the law too complicated would jeopardize its passage, so he and others in the group opted to keep it focused solely on electronic devices.

"We can tackle this one part of the issue and do a really good job solving it," he says. "Now we've tackled one huge piece."